Fatal shooting a trigger for police body worn cameras?

FEATURES: NZ Security, August/September 2016

Michael Bott, criminal lawyer and body worn camera advocateControversy erupted last month over the fatal shooting by police of 36-year-old Nick Marshall during a drugs and weapons raid on a property in Frankton, Hamilton, on 12 July.

Police claim that Mr Marshall pointed a long-barreled firearm at officers and did not put it down despite being told to repeatedly. More than one member of the Armed Offenders Squad had opened fire, with Police stating that the operation had been carefully planned as part of an ongoing investigation into drugs and firearm dealings.

Both Mr Marshall's father and partner disagreed with the police version of events. After the shooting, Mr Marshall's father claimed that he had been unarmed, and his partner, Kendyl Eadie, posted on her Facebook page that he had been neither armed nor threatening. She referred to the police as "cold blooded killers".

In the wake of the incident, criminal barrister Michael Bott has renewed calls for police to wear body worn cameras, which could be used to record such incidents and potentially avoid the need to rely solely upon individuals’ recollections of events. NZ Security talked with Mr Bott about the argument for the introduction of body worn cameras.

NZSM: What does your interest in the police use of body worn cameras stem from?

MB: In around January/February 2007, I became involved in a police shooting case up in the Horowhenua. In that case a young man had barricaded himself in a bedroom with a lever action .22 calibre rifle. Police wanted to come in and interview this man. The officers forced their way in, an officer drew a Glock pistol and shot him.

A number of police officers were involved, and what I noticed in terms of the disclosure was that leading up to the shooting there were quite detailed notes about anything that would incriminate the defendant. But at the point of the shooting the police officers’ notes simply stopped – and this was across all of the officers who were at the scene at the time – and I thought this was somewhat strange. It picked up again afterwards when the man was in the ambulance or when he was on the ground.

Then I saw a couple of references – I think it was in two notebook entries – to words to the effect “as IPCA going to be involved, no further details taken.” It simply transpired that there was this culture at the time that as the IPCA [Independent Police Conduct Authority] was going to be involved they therefore stopped recording the details during the shooting and in terms of the actions of the police.

I thought this was quite worrying because police notebooks are sources of evidence, and if police are going to stop recording evidence about their own actions then how can they be held to account, and how can we actually decide whether the actions undertaken were lawful or not?

I began reflecting on this, and on the case of Steven Wallace who was shot in Waitara by a police officer. There was only one person there to say whether the actions at the time were appropriate or not, and that was the officer who pulled the pistol.

When I put those two things together I then began to think is there another way in which decision makers after the event can have access to information which is not prejudiced or perhaps tarnished by some sort of bias, be it unconscious or deliberate? Then I began looking at the availability overseas of body mounted cameras.

They have been used to great effect in Great Britain and also in the States, and what’s been of interest there has been the large number of cases involving police decisions to use lethal force against African Americans. The cameras have been invaluable in relation to looking at whether the action was appropriate or not, and it appears that in a number of cases police actions were not appropriate or justified.

…It appears to me that these cameras are a valuable tool in the sense that they protect police from false or malicious allegations of police violence but also they protect the public because it enables an independent decision maker to look at the potential video footage and decide in the instance of each particular case whether the actions of the officers were in fact appropriate.

Enjoying this article? Consider a subscription to the print edition of NZ Security.

NZSM: How can impartiality be ensured in how the camera is deployed?

MB: A study has been done by Cambridge University that showed that in situations where officers could turn the camera off and then turn it on at their own will, instances of police interference with people didn’t decline. But in situations where the cameras were always operating, such instances actually did decline.

What that indicates is that if police know they are being recorded then they begin to think about their actions. They think, is it appropriate in the circumstances to arrest this person or to stop that person?

NZSM: Given the ubiquity of camera enabled smart phones, is it possible that bystanders taking footage of poor police behavior may itself involve a biased selection of events?

MB: I remember some years ago there were the Fight for Life events in Auckland and there was a man lying prone on the ground who had been pepper sprayed [by police]. The only reason why a complaint against the police was upheld was because there was independent video footage of what had actually occurred because bystanders had their cameras rolling.

That’s not to say that the police always act inappropriately. Far from it. But it just goes to show that if you have a camera involved you do have some form of evidence that can’t be interfered with.

With a notebook, what you’re relying upon is the recollection – that is the memory – of someone who has witnessed an event. A camera’s the same thing but it does allow an independent decision maker to actually view the footage and then interview the participants in the exchange to arrive at a point of view.

Studies have shown that human memory is fallible, and even in the short moments after the event the way we recollect things is not like a video camera. Our subconscious, for example, operates to try and interpret and make sense of events. It’s prone to suggestion; it’s prone to bias, even unconscious bias.

The other thing is that body mounted cameras are not that controversial. When a police officer pulls a Taser on a person there’s a camera in the Taser that starts rolling and recording evidence. So it’s not a huge leap in terms of something new.

What we’re talking about is a tool designed to make sure that when the state exercises force it does so appropriately, and there’s a two-fold protection there: (i) it protects the police from malicious complaints, and (ii) it protects members of the public from potential abuses of police power.

NZSM: It would appear in the New Zealand context that there isn’t necessarily the political will to implement body worn cameras at the moment in relation to the police.

MB: No. But the thing that we’ve got to decide is who polices the police? What checks and balances are there to ensure that the actions of the police are basically appropriate in the circumstances? The IPCA, for example, will conduct enquiries but what you must remember is that the IPCA is in the Office of the Ombudsman and has been underfunded for years.

Effectively, if you starve an organisation of funds they can’t conduct their job appropriately, or there’s delays. When you give the state the power to use lethal force in certain circumstances against citizens and members of the public, then in those cases there has to be appropriate checks and balances to make sure that the decisions to deploy potentially lethal force are exercised in an appropriate and reasonable fashion.

In the context of the cost of instituting a regime such as this, it should be done now. The technology’s available, it’s being done with Tasers. So if it’s being done with Tasers, which the police are saying are not fatal, then surely it stands to reason that it should be done [with guns].

NZSM: So it’s about standardisation in relation to the deployment of weapons that potentially deliver lethal force?

MB: We do like to think that we can trust the police, and most times we can but for example this year. I had an IPCA complaint that came in in relation to a client of mine who was the victim of an unlawful arrest and an assault by police. In relation to that situation we do know, and the IPCS found, that the police in that situation behaved unreasonably and unlawfully and their evidence that they gave to the IPCA was unreliable whereas the evidence of my client who had no previous convictions was reliable and consistent.

We need to make sure that just because of the power you’re exercising – that the greatest power that anyone can have is to take the life of another – that that decision is appropriate in the circumstances to protect the officer who is making that decision but also to protect the public so that we know we can have confidence in the police.